Sunday, December 13, 2009

Exonerees, lawyers fees and innocence compensation: A personal perspective on an ugly dispute

Last week an article about an exoneree suing his attorneys was printed in several papers. At the time I knew that something was not right, that the whole story was not being printed but I had not caught up with being out of town and responded yet.

I know Jeff Blackburn, with the Innocence Project of Texas, and know him to be a very hard-working, extremely dedicated attorney. If you know me at all, you know I rarely praise attorneys as most of them are not worthy of any, but Jeff is one of the exceptions. I have known him since the '70's and he is one of the people wanting to figure out how to have Todd Willingham posthumouslyalso exonerated. Jeff spoke at our annual march in Texas this year. You can watch his speech online.

He was also the attorney for the Tulia defendants who were so royally screwed until he stepped in and took their cases and fought the powers in Tulia. Google Tulia or rent the movie "American Violet" and see for yourself, if you are not familiar with this case.

Anyhow, I wanted to share with you a post that is on the great blog, "Grits for Breakfast" that explains what I wasn't able to put into words. Heaven knows that with more attorneys like Jeff, our wrongly convicted prisoners would never have been wrongly convicted!

I'm going to speak out of school a bit to offer a personal perspective on a dispute covered today in the Dallas News involving my former employers. I've not spoken to anyone involved about the lawsuit described below. I claim no direct line to the truth on this and only offer my own impressions.

However, I've got mixed feelings about today's media coverage over a fee dispute between one of Texas' DNA exonerees, his attorney, and the legal director of the Innocence Project of Texas. This spring I worked worked for/with both lawyers being sued - Kevin Glasheen and Jeff Blackburn - and my history with Blackburn goes back to working with him on the Tulia cases around the turn of the century. What's more, I know all of the exonerees and attorneys who are quoted in the story.. If you know nothing besides what you read in Jennifer Emily's Dallas News story ("Innocence Project counsel criticized for profiting on exonerees"), it sounds pretty bad. Here's her lede:

Jeff Blackburn has helped spring dozens of Texans from prison after they spent time behind bars for crimes they did not commit.

But even as he's carried on the public fight to free the wrongly convicted as chief counsel for Innocence Project of Texas, he's been privately profiting off of some of the exonerated by claiming a portion of the state restitution paid to them.

Accepting fees from exonerees for services not directly connected to the nonprofit Texas Innocence Project is not illegal. But at least one public watchdog group says it appears improper, and a state legislator says he may file a bill to prohibit such profiteering.

At root, this critique is based on a sentiment, most directly expressed by Rep. Rafael Anchia, that "They should be helping the exonerees on a pro bono basis." But what other clients do attorneys represent without compensation? In this case, thanks to their lawyers, clients got aggressive representation across multiple fronts that resulted in changes to state law and opened the door for multi-million dollar settlements of their federal civil rights claims. That's no small thing. Texas could, as a state, change the way we compensate lawyers in civil court, but that's a much larger question.

The whiff of scandal promoted in the story is rooted in a fallacy the writer fails to rebut: The idea that exonerees could have just filed "a one-page document the guy could fill out himself." The fact is that Texas already had a compensation statute when Steven Phillips got out of prison, but at a much lower compensation rate. All of the fellows who hired Glasheen (some of whom, but not Phillips, for which Blackburn receives a referral fee) could have filed that same one-page document already and received compensation at a lower rate. They each had a choice under the law: Sue or accept compensation. Some did accept the compensation and didn't pay lawyers anything. Bully for them. That was their decision, but they'll receive less money overall than Mr. Philips. The only ones on the hook for attorneys fees are the ones who made a conscious choice that the previous compensation package was not enough.

Under the law for exonerees who reject the state compensation package, their other option for compensation was and is to hire a lawyer and sue. These are straight-up, contingency style Sec. 1983 federal civil rights suits which are very expensive to litigate and perhaps even more difficult to win - plaintiffs must not just prove harm but a "pattern and practice" of abuse. Those lawsuits were settled this spring in light of Texas' new compensation bill and a portion of the bill's success may be attributed directly to leverage from Glasheen's litigation - particularly among Dallas-area reps like Anchia whose local governments could otherwise be on the hook for big civil judgments. If the bill had failed, the litigation would have gone forward, including Mr. Phillips', of that I have little doubt.

Bottom line: these exonerees are in a unique position because of a) choices they made and b) the point in history they made them. Nobody going forward will find themselves similarly situated because the law has changed.

The compensation they'll receive under the new bill, even after paying their lawyers, will be much more than exonerees would have gotten otherwise. What's more, the new bill establishes an annuity that will pay them for the rest of their lives. Nobody's hurting for money here.

It should also be said I'm 100% sure the compensation bill would not have passed this year without Kevin Glasheen and Jeff Blackburn. While Blackburn's efforts were more high-profile, Glasheen, a Republican attorney out of Lubbock, brought connections and resources to the table that I'm absolutely certain pushed the bill over the top, especially during a session when money was tight and most other innocence legislation died. He was in Austin every week lobbying with terrific success, but his incentive to do so was the fee agreement. Should he, would he, would anyone expect him to do so just out of the goodness of his heart? He didn't take these cases pro bono; this is how the man earns his living.

Ditto for Blackburn, who faced similar criticism after the Tulia cases were settled. But how can he handle expensive, longshot innocence cases if he must earn his living hustling for DWI clients in Amarillo? I've watched Blackburn put tens of thousands in legal expenses on his own credit cards in possible-innocence cases, sometimes without getting it back. If we're going to blame Jeff when makes money, he should also get credit for putting in a lot more of his own money and pro bono time to help innocent clients post-conviction than most attorneys I know.Another thing not mentioned in the story: Glasheen gave significant monetary advances to exonerees to help them pay bills while the litigation and legislation was pending - in some cases fairly significant amounts. Nobody had any complaints when they approached him seeking cash, one notices, and if the bill and litigation both failed, he'd be out that money. I'm just sayin'.

So while I understand why Phillips and perhaps others chafe at the notion, personally I don't begrudge the attorneys involved being paid. Professional-level services are not free, and otherwise the work wouldn't get done.At the end of the day, Blackburn, Glasheen, and these exonerees together along with Anchia, Rodney Ellis, Robert Duncan and others at the Lege achieved something amazing with the passage of this bill. Exonerees in the past were compensated much less, and in a couple of instances wound up destitute and homeless a few short years after getting the money. Even after attorneys fees, these guys will get more than they otherwise would have, including a lifetime annuity.

The fight for better statutory compensation - fought by the exonerees through their own efforts and their attorneys - both earned more for them and paved the way for improved justice for others in the future.. Henceforth, it's true: Nobody need hire an attorney and exonerees can just file that one-page document. But that's a fight recently won, not a fait accompli that would have happened without these attorneys' effort.

Political and legal fights over public policy are messy beasts and seldom free from self-interest. This one was successful, so it's a shame to see victors feuding over the spoils. I'm sad that it's happening and wish everyone involved the best.